Unfair & Constructive Dismissal

There have been some improvements to the law on unfair dismissal in the past few years. For instance you now only need to have been employed for one year to bring a claim - it used to be two. Secondly, the maximum amount of compensation an employment tribunal can award has risen from £12,000 to a current £56,800. As a result, more and more claims are being brought to an employment tribunal.

What is an unfair dismissal?

An unfair dismissal occurs when you are dismissed for a reason that does not fall within one of the five permitted reasons laid by law. You could be sacked for a perfectly valid reason, but if the employer does not follow the right procedures, you could still win compensation.

The five permitted reasons are :

• Incapability - For example, lack of qualifications, competence and ill-health.
• Gross Misconduct - For example, theft, being drunk on the job, leaking confidential information, being regularly late or absent.
• Redundancy - provided the method for selection was fair.
• Illegality- For example, you could not continue to work in the position, which you held without contravention of a restriction, or duty imposed by law.
• Some other substantial reason which justifies dismissal.

Did the employer use a fair procedure when dismissing?

The tribunal will look at whether the employer had a proper disciplinary procedure and followed it. Written warnings are not obligatory in every situation: in cases of serious misconduct, for instance, immediate dismissal can be perfectly fair. This is known as summary dismissal. However, the tribunal will consider whether your employer for example, investigated allegations thoroughly and gave you the chance to have your say. If your employer does not have a written disciplinary procedure, the tribunal will look at ACAS Disciplinary and Grievance Procedure to see if your employer has followed this.

What Is Constructive Dismissal?

You could be treated as 'constructively dismissed' if your employer acted 'unreasonably'. For instance by victimising you, not supporting you in a difficult situation, changing your job without consulting you, falsely accusing you of misconduct or harassing or humiliating you.

How much compensation can be awarded?

The maximum award that a tribunal can order is £56,800 plus the basic award.

Compensation

An employment tribunal can award the following remedies :

• Compensation.
• Reinstatement
• Re-engagement

The most common remedy is compensation, which is divided into:

• Basic award
• Compensatory award

The basic award depends on the employee's age, length of employment and gross weekly earnings. The basic award is calculated in the same way as statutory redundancy. You can work out how much this would be by using our redundancy calculator.

The compensatory award is based upon the actual losses suffered. This primarily comprises your loss of earnings, including any benefits from the date of dismissal until the employment tribunal hearing. The tribunal will also consider future loss of earnings until you would be able to secure another suitable position. However, you are under a duty to mitigate your loss. This means you should take active steps to look for new employment as soon as possible.

Can anyone bring a claim?

No. You must:

• Be an employee. If you are a casual or temporary worker, you won't have any protection;
• have been employed by your organisation for one year without any breaks;
• be under 65;
• work in the UK.

When must my complaint be submitted to an Employment Tribunal?

You must bring your complaint to an employment tribunal within three months from the Effective Date of Termination. The tribunal is extremely unlikely to extend the time to allow you to bring a complaint.

We have dealt with many unfair and constructive dismissal cases. It is important to seek legal advice immediately, if you think that, you have been unfairly or constructively dismissed. We will be able to advise you on the prospects of success and the amount of compensation that you are likely to win.